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The Questionable Character of the Bar's Character and Fitness Inquiry

Authors


  • This study was funded by a grant from the Law School Admissions Council (LSAC). The opinions and conclusions contained in this article are the authors' and do not necessarily reflect the position of LSAC. The authors gratefully acknowledge the assistance they received from the Connecticut Bar Examining Committee, the Office of the Chief Disciplinary Counsel, and the Statewide Grievance Commission. We also thank Emily Nix for expert assistance in finding and programming the appropriate test for pooling in multinomial logit regressions.

Abstract

Lawyers who engage in misconduct can do substantial harm. To screen out “unfit” lawyers, bar examining authorities collect detailed personal information from bar applicants. The rationale for this “character and fitness” inquiry is to identify who is likely to become a problematic lawyer. Despite the history of discrimination associated with this inquiry and the highly personal information requested, there has been no rigorous test of whether such predictions are possible. This article examines the information disclosed by 1,343 Connecticut bar applicants and their subsequent disciplinary records. It reveals that while some bar application data are associated with an elevated risk of future discipline, the predictive power of the data is extremely low. Moreover, several variables are more strongly associated with less severe discipline than with more severe discipline. We argue that some of the causal mechanisms linking application data to subsequent discipline may have more to do with career trajectory than with an underlying propensity to engage in misconduct.

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